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NORTH CAROLINA COURT OF APPEALS
3 March 2009
REBECCA P. JONES,
No. 06 CVS 513
SUSAN L. SKELLEY,
Appeal by plaintiff from an order entered 27 November 2007 by
Court of Appeals
Judge Ola M. Lewis in Brunswick County Superior Court.
the Court of Appeals 22 October 2008.
Gailor, Wallis & Hunt, P.L.L.C., by Kimberly A. Wallis and
Jaime H. Davis, for plaintiff-appellant.
Jess, Isenberg & Thompson,
HUNTER, Robert C., Judge.
Rebecca P. Jones (“plaintiff”) appeals from an order granting
(“defendant”) and dismissing plaintiff’s claims for alienation of
affections and criminal conversation based on lack of subject
After careful review, we reverse and remand.
defendant in Brunswick County Superior Court asserting claims for
alienation of affections and criminal conversation.
On 1 November
-22007, plaintiff filed a motion for summary judgment as to her
criminal conversation claim.
On 13 November 2007, defendant filed
a motion for summary judgment seeking dismissal of plaintiff’s
alternative, for an order granting defendant’s motion for the
jurisdiction.1 However, defendant argued, inter alia, that because
the majority of her alleged acts which purportedly alienated the
affections of plaintiff’s spouse, Phil V. Jones (“Mr. Jones”),
occurred in South Carolina, and because plaintiff lived in South
Carolina at all times, any tortious injury had to occur in South
Because South Carolina does not recognize the tort of
alienation of affections, defendant asserted that the trial court
lacked subject matter jurisdiction and was required to dismiss the
alienation of affections claim.
As to the criminal conversation
claim, defendant contended that even though she had engaged in
sexual intercourse with Mr. Jones in North Carolina in June 2004
while the Joneses were still married, the court lacked subject
matter jurisdiction because South Carolina abolished the tort of
criminal conversation and any injury or damage would have occurred
in South Carolina given that the Joneses were residents of South
Defendant also admits to stipulating
jurisdiction in this matter on appeal.
-3Plaintiff argued that North Carolina law is clear that for
alienation of affections, the tortious injury or harm occurs where
conversation, said injury occurs where the sexual intercourse
occurs, not where a plaintiff resides.
She asserted that because
defendant’s alienating acts occurred in both North Carolina and
South Carolina, there was a material question of fact as to where
Carolina or South Carolina law applied.
As to the criminal
conversation claim, plaintiff contended that North Carolina law is
clear that a defendant can be liable for a single act of postseparation
Carolina, and given that defendant admitted to engaging in sexual
intercourse with her husband in North Carolina while they were
The trial court granted summary judgment based on lack of
subject matter jurisdiction and dismissed both claims.
Standard of Review
Under Rule 56, summary judgment shall be
answers to interrogatories, and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact and that any party is entitled
to a judgment as a matter of law.”
-4Mortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 3, 249 S.E.2d
727, 729 (1978) (citations omitted), affirmed per curiam, 297 N.C.
696, 256 S.E.2d 688 (1979).
The burden of establishing the lack of any
triable issue of fact is on the party moving
for summary judgment, and the movant's papers
are carefully scrutinized while those of the
opposing party are regarded with indulgence.
The movant can satisfy this burden either by
proving that an essential element of the
opposing party's claim is nonexistent or by
showing, through discovery, that the opposing
party cannot produce evidence to support an
essential element of its claim.
Id. at 4, 249 S.E.2d at 729 (citations omitted).
While courts must
determine if a genuine issue of material fact exists, they are not
Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422
Further, “if there is any question as to the credibility
of affiants in a summary judgment motion or if there is a question
which can be resolved only by the weight of the evidence, summary
judgment should be denied.”
City of Thomasville v. Lease-Afex,
Inc., 300 N.C. 651, 655, 268 S.E.2d 190, 193-94 (1980) (citations
In ruling on a motion for summary judgment, “‘“the
evidence is viewed in the light most favorable to the non-moving
party,” and all inferences of fact must be drawn against the movant
and in favor of the nonmovant.’”
Koenig v. Town of Kure Beach, 178
The standard of review is de novo.
Builders Mut. Ins.
Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528,
-5Viewed in the light most favorable to plaintiff, the evidence
tends to show that plaintiff and Mr. Jones married in 1974, moved
to South Carolina from North Carolina in 1979, and had eleven
children during their marriage.
They separated on 29 January 2004
but did not enter a formal separation agreement until 21 January
On 31 January 2005, plaintiff filed for divorce in South
Defendant admitted that she lived in North Carolina until midAugust 2003 and between March and May of 2004.
At the time
plaintiff filed her complaint, defendant lived in South Carolina.
Plaintiff has resided in South Carolina since 1979.
Mr. Jones has
lived in South Carolina since 1979 as well, with the exception of
spending the majority of the 2003 summer living in a friend’s
trailer in North Carolina.
Beginning in January 2003, defendant and Mr. Jones began
conversing with some regularity via cell phone.
that their relationship began to deepen in the spring of 2003.
Defendant testified that she and Mr. Jones began to talk frequently
via cell phone in the spring of 2003 and that they would also
occasionally meet in parking lots.
Defendant and Mr. Jones both
admitted that they concealed their phone conversations, these
meetings, and their relationship from their respective spouses.
Mr. Jones testified that he hid this information from his wife
because his relationship with defendant “was too close.” Defendant
admitted to having secret, lengthy, phone conversations with Mr.
Jones and that she remembered being “very close to” Mr. Jones
-6before May 2003.
She further testified that in February or March
2003, during a rendevous in a South Carolina parking lot, Mr. Jones
gave her a letter stating that “he had fallen in love with [her].”
On or about 12 May 2003, plaintiff was diagnosed with genital
After her diagnosis, Mr. Jones left the marital household
for the majority of the 2003 summer, and the Joneses began marriage
Mr. Jones testified that he had never been diagnosed
with genital herpes.
He did testify that he had a “rash” on his
penis and that he believed he had told defendant about this fact;
however, Mr. Jones could not explain why he would have told
defendant about the rash given that he denied having any sexual
contact with her prior to this time.
On 15 May 2003, defendant was
prescribed Valtrex, a drug used to treat the herpes virus; however,
she testified that she had never been diagnosed with herpes and
that the drug was prescribed to treat fever blisters.
For two to three months during the 2003 summer, Mr. Jones
lived in North Carolina in a friend’s trailer.
In May 2003,
defendant left her marital home in North Carolina and moved into a
condominium in North Carolina. Mr. Jones testified that during the
2003 summer, he and defendant became “affectionate” but that they
only engaged in hugging at her North Carolina condominium. Despite
testifying several times that only hugging occurred at her North
Carolina apartment, defendant ultimately admitted that she and Mr.
Jones engaged in hugging and kissing throughout the 2003 summer.
Plaintiff testified that in August 2003, Mr. Jones admitted to her
that he had engaged in sexual intercourse with defendant at her
-7North Carolina condominium during the 2003 summer and that he had
engaged in “sexual touching” with defendant prior to May 2003.
addition, on 6 June 2003, plaintiff went to a home where Mr. Jones
was performing construction and found defendant hiding in a closet,
albeit fully clothed.
When asked at her deposition why she was
hiding in the closet, defendant testified that she did not want to
Plaintiff claims this home was located in
Cherry Grove, North Carolina and defendant asserts it was located
in Cherry Grove, South Carolina.
On or about 21 August 2003, plaintiff allowed Mr. Jones to
return to the marital residence because he promised her that he had
ended his relationship with defendant and because plaintiff wanted
to work on their marriage.
Toward the end of August, defendant
attended a treatment facility in Arizona known as “the Meadows.”
Defendant admitted that while there, she wrote a letter to Mr.
Jones almost every day and sent them to a secret, prearranged post
office box in Surfside, South Carolina.
She further admitted that
in these letters, she and Mr. Jones expressed their love for each
Mr. Jones testified that defendant sent him the letters at
this post office box “so she could — just so she could mail me
So no one would know about it obviously.”
testified that he and defendant were going to great lengths to hide
their relationship “[b]ecause it was an inappropriate emotional
relationship” in that it was “too close” for two people who were
married to other individuals.
-8On 7 October 2003, Mr. Jones left the marital residence for a
second time because plaintiff believed that he and defendant were
continuing to see each other and converse on the telephone.
Plaintiff testified that Mr. Jones left the marital residence for
a third time on 29 January 2004, but that they resumed marriage
counseling with the goal of Mr. Jones returning to the marital home
by June 2004.
In May 2004, plaintiff discovered Mr. Jones and defendant in
bed together in the middle of the night at a residence in South
Defendant and Mr. Jones both admitted that they engaged
in sexual intercourse on that day, but claimed that it was the
first time that they had done so.
Both defendant and Mr. Jones
admitted that approximately one month later, in June 2004, they
went on a weekend trip to Wilmington and New Bern, North Carolina
where they engaged in sexual intercourse.
Defendant admitted to
paying for the majority of expenses for this trip.
Jones initially testified that he and defendant only had sex on
these two occasions, he ultimately admitted that he and defendant
began having sex on a regular basis beginning in May 2004 and that
he was currently in a committed relationship with defendant.
On 21 January 2005, plaintiff and Mr. Jones signed a formal
separation agreement, and on 4 March 2005, they divorced.
Jones testified that his relationship with defendant contributed to
the downfall of his marriage.
Alienation of Affections
On appeal, both parties largely reiterate the arguments raised
Plaintiff contends a material issue of fact exists as to
the state in which the alleged alienation of affections occurred,
North Carolina, which recognizes the tort, or South Carolina, which
has abolished the tort, particularly given this Court’s decision in
Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988).
Defendant asserts that no material question of fact exists as
to the state in which the alleged alienation occurred because
virtually all of the activity which purportedly alienated Mr.
Jones’s affections occurred in South Carolina and the “minimal acts
that took place in North Carolina could not have and did not cause
any alienation of affection between the Plaintiff and [Mr.] Jones.”
Specifically, plaintiff argues:
(1) the 2003 cell phone calls she
made to Mr. Jones while she resided in North Carolina were not
“wrongful and malicious conduct”; (2) any alleged alienating acts
that occurred in North Carolina prior to Mr. Jones moving back into
the marital household in August and November 2003 could not have
alienated Mr. Jones’s affections because the fact that Mr. Jones
reconciled; (3) the June 2004 trip to North Carolina could not have
alienated Mr. Jones’s affections because “Plaintiff was already
divorced [from Mr. Jones] when she learned of said trip” and
plaintiff had told defendant “‘I don’t want him; you can have him’”
subsequent to finding Mr. Jones and defendant in bed together in
-10May 2004; and (4) if any alienation did occur, it occurred in South
defendant and plaintiff or during a January 2005 incident in which
plaintiff discovered Mr. Jones spending the night at defendant’s
residence in South Carolina because plaintiff testified that after
these incidents she realized she was probably going to have to file
Viewing the evidence in its proper light, we agree with
defendant’s motion for summary judgment.
“A claim for alienation of affections is a transitory tort
because it is based on transactions that can take place anywhere
and that harm the marital relationship.”
Darnell, 91 N.C. App. at
351, 371 S.E.2d at 745 (citations omitted).
“The substantive law
applicable to a transitory tort is the law of the state where the
tortious injury occurred, and not the substantive law of the forum
Id. (citations omitted).
The issue of where the tortious
injury occurs, and accordingly which state’s law applies, is based
on where the alleged alienating conduct occurred, not the locus of
the plaintiff’s residence or marriage.
Id.; see also Charles E.
Daye & Mark W. Morris, North Carolina Law of Torts § 11.25, at 109,
n.47 (2d ed. 1999) [hereinafter, Daye, Torts] (stating that the
“law applicable to determine whether alienation of affections
occurred is that of the state in which the conduct occurred”); 1
Robert E. Lee, North Carolina Family Law § 5.50, at 421 (5th ed.
1993) [hereinafter Lee, Family Law] (stating that “the Court of
-11Appeals [has] found [in Darnell] that the place where the conduct
occurred should govern [which state’s law applies] in an action for
alienation of affections”) (footnote omitted).
the “defendant’s involvement with [the] plaintiff’s [spouse]” spans
multiple states, for “North Carolina substantive law . . . [to]
appl[y],” a plaintiff must show that “the tortious injury . . .
occurred in North Carolina.”
S.E.2d at 745.
Darnell, 91 N.C. App. at 351, 371
Thus, if the tortious injury occurs in a state that
does not recognize alienation of affections, the case “cannot be
tried in a North Carolina court.”
Id. (citations omitted).
To establish a claim for alienation of
affections, plaintiff’s evidence must prove:
“(1) plaintiff and [her husband] were happily
married and a genuine love and affection
existed between them; (2) the love and
affection was alienated and destroyed; and (3)
the wrongful and malicious acts of defendant
produced the alienation of affections.”
Id. at 350-51, 371 S.E.2d at 745 (citations omitted; alteration in
A claim for “alienation of affections is
comprised of wrongful acts which deprive a
married person of the affections of his or her
spouse — love, society, companionship and
comfort of the other spouse. . . . The gist
of the tort is an interference with one
spouse’s mental attitude toward the other, and
relation. . . . [Evidence of alienation] is
sufficient if there is no more than a partial
loss of [a spouse’s] affections.”
Id. at 350, 371 S.E.2d at 744 (citations omitted; alterations in
original). “[A]n alienation of affections claim” does not have “to
be based on pre-separation conduct alone.” McCutchen v. McCutchen,
360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006).
-12Destruction of the marriage . . . is not a
necessary element of the action. Rather, the
action lies for the diminution of affection
within the marital relationship. Thus, while
damages will obviously be affected, the action
lies for the diminished affection, and a
partial loss of affection is sufficient to
support the action.
Daye, Torts § 11.22.2, at 107 (footnotes omitted).
this Court stated in Darnell, even if it is difficult to discern
where the tortious injury occurred, the issue is generally one for
We recognize that the injury attributable
to the alienation of another’s affections is a
nebulous concept, which, unlike a broken bone,
is not a readily identifiable event.
establishment of this tortious injury is
successive acts of a defendant.
However, even with this knowledge, as
long as this cause of action exists in North
Carolina, we conclude that the issue of where
the tort took place may not be kept from a
jury simply because it is difficult to
Darnell, 91 N.C. App. at 354, 371 S.E.2d at 747.
Here, when the evidence is viewed in the light most favorable
to plaintiff, we believe a material question of fact exists as to
whether the alleged alienation of Mr. Jones’s affections occurred
clandestine phone calls defendant made to Mr. Jones in the spring
and summer of 2003, the sexual acts that admittedly and allegedly
occurred during the 2003 summer at defendant’s North Carolina
condominium, and the 2004 trip to North Carolina during which
defendant and Mr. Jones admitted to engaging in sexual intercourse.
-13While defendant cites this Court’s decision in Coachman v.
proposition that summary judgment is proper here and that the
telephone calls she made from North Carolina to South Carolina,
malicious act, in the context of an alienation of affection claim,
has been loosely defined to include any intentional conduct that
‘would probably affect the marital relationship.’”
Pharr v. Beck,
147 N.C. App. 268, 272, 554 S.E.2d 851, 854 (2001) (citations and
McCutchen, 360 N.C. at 285, 624 S.E.2d at 624-25.
acts . . . are acts constituting ‘“unjustifiable conduct causing
the injury complained of.”’”
Coachman, 122 N.C. App. at 448, 470
S.E.2d at 564 (citations omitted). In granting summary judgment in
the defendant’s favor on the alienation of affections claim in
Coachman, this Court specifically noted that “the only possible
wrongful and malicious instances of conduct by [the defendant we]re
the phone calls [the defendant] made to the marital home[.]”
The Court concluded that the lengthy phone conversations between
the defendant, who resided in Florida, and the plaintiff’s spouse,
who resided in North Carolina, were not “sufficient evidence of
malicious and wrongful conduct” because
the plaintiff admitted
relationship, which provided “a valid; inoffensive reason for
indication that the phone conversations were marked by salacious
intonation of improper conduct by defendant.” Id. In contrast, in
the instant case, not only is there more evidence to support
Coachman, defendant and Mr. Jones intentionally concealed:
phone conversations; their in-person meetings with each other,
which they arranged via these phone conversations; and their
relationship from their respective spouses.
Next, defendant argues that these phone calls, the clandestine
in-person meetings, and the sexual activity that occurred at her
North Carolina condominium during the summer of 2003 did not
alienate the affections of Mr. Jones because subsequent to these
events, Mr. Jones returned to the marital home and agreed to work
on his marriage.
First, we note that defendant’s argument appears to assume
that simply because a plaintiff and her spouse agree to resume
living together in the marital home and work on their marriage
following a defendant’s alleged interference in their marriage, no
alienation of affections has occurred.
Defendant’s argument is
“diminution or destruction [of love and affection] often does not
happen all at once.
‘“[Rather] [t]he mischief is a continuing
McCutchen, 360 N.C. at 284, 624 S.E.2d at 623-24
(citations omitted). Furthermore, the mere fact that plaintiff and
Mr. Jones attempted to reconcile, does not conclusively negate the
fact that “‘a partial loss of [Mr. Jones’s] affections’” could have
Darnell, 91 N.C. App. at 350, 371 S.E.2d at 744
(citation omitted). As stated by our Supreme Court, “the fact that
spouses continue living together after the alleged alienation does
not preclude the possibility that alienation of affections has
McCutchen, 360 N.C. at 284, 624 S.E.2d at 624
See also, 1 Lloyd T. Kelso, North Carolina
Family Law Practice § 5:9, at 277 (2008) (“[t]he fact that the
[wife] continues to live with the [husband] after knowledge of
[his] adultery, but without condoning it, is no defense, and the
fact that the plaintiff and her or his spouse continue to live in
the same house after the spouse’s affections have allegedly been
testimony, and is not a defense to a claim of alienation of
affections”) (footnotes omitted).
As such, the alleged alienating
acts that occurred in North Carolina prior to Mr. Jones’s brief
returns to the marital residence in August and November 2003
respectively are relevant and material in determining where the
tortious injury occurred.
Next, defendant argues that her June 2004 trip to North
Carolina with Mr. Jones, during which they engaged in sexual
intercourse, “could not possibly have alienated the affection of
[Mr.] Jones from Plaintiff because plaintiff was already divorced
[from him] when she learned of said trip[,]” and because when she
called plaintiff to apologize for hurting her after plaintiff had
-16plaintiff told her “‘I don’t want him; you can have him.’”
First, defendant does not cite any authority to establish that
a plaintiff-spouse must show that she was aware of every alienating
act prior to divorce in order to assert said acts alienated her
spouse’s affection. And, we fail to discern how a plaintiff’s lack
of awareness as to a particular alienating act prior to divorce
conclusively negates the fact that said act might have sufficiently
diminished her spouse’s affections toward her.
defendant makes no argument and cites no authority as to how
plaintiff’s statement that she did not want Mr. Jones and that
defendant could have him, which plaintiff testified was made in a
state of anger, conclusively negates the fact that the 2004 trip to
North Carolina alienated Mr. Jones’s affections.
To the extent
that defendant’s brief implicates the argument that plaintiff
consented to such activity, we decline to address this issue as
defendant neither raised nor argued the defense of consent below
nor does she argue it or cite any authority in support thereof in
Finally, defendant appears to argue that if any alienation
occurred here, it conclusively did not occur until November 2004
when plaintiff purportedly realized via a discussion with defendant
in South Carolina that she was going to have to get a divorce, or
until January 2005, when plaintiff discovered defendant and Mr.
Jones together at defendant’s South Carolina residence, which
purportedly prompted plaintiff to file for divorce.
-17As we stated supra, “[d]estruction of the marriage . . . is not a
necessary element of [alienation of affections].
action lies for the diminution of affection within the marital
Daye, Torts § 11.22.2, at 107 (footnote omitted).
Hence, while this evidence supports the fact that prior to this
point, plaintiff was still trying to salvage her marriage with Mr.
Jones and that she believed it was still possible, this does not
conclusively negate the fact that defendant might have already
sufficiently alienated Mr. Jones’s affections toward plaintiff.
Furthermore, we note that when viewed in the light most favorable
to plaintiff, the November 2004 conversation actually lends support
to plaintiff’s claim that the alienation had already occurred and
that defendant was puzzled as to how plaintiff had not already
grasped that fact.
Specifically, defendant allegedly stated to
“Don’t you get it? What does it take for you
to get it? I wonder just what does it take
for you to get it.
You catch us here and
there and, you know, at The Collins and all
these telephone conversations. What does it
take for you? I just don’t understand[.]”
In sum, because we conclude that when the evidence here is
viewed in the light most favorable to plaintiff, a material issue
of fact exists as to whether the alleged alienation of affections
occurred in North Carolina or South Carolina, we hold the trial
court erred in granting summary judgment based on lack of subject
-18Plaintiff asserts the court erred with respect to her criminal
conversation claim because North Carolina law is clear that she,
defendant “acknowledges case law to the contrary[,]” she argues
that a single occurrence of sexual intercourse between her and Mr.
plaintiff telling her that she did not want Mr. Jones, “does not
constitute an interest of the State to give North Carolina subject
We agree with plaintiff.
“To withstand [a] defendant’s motion for summary judgment on
[a] claim of criminal conversation, plaintiff must present evidence
‘(1) marriage between the spouses and (2) sexual
intercourse between defendant and plaintiff’s spouse during the
Coachman, 122 N.C. App. at 446, 470 S.E.2d at 563
In addition, a plaintiff must also show “that
the tortious injuries . . . [the] criminal conversation, occurred
in North Carolina before North Carolina substantive law can be
Cooper v. Shealy, 140 N.C. App. 729, 736, 537 S.E.2d
854, 859 (2000) (citation omitted). Consequently, a plaintiff must
show that a defendant engaged in sexual intercourse with her spouse
in North Carolina.
North Carolina law is clear that a claim for
Johnson v. Pearce, 148 N.C. App. 199, 201, 557 S.E.2d
189, 190-91 (2001).
Even where spouses enter into a separation
agreement containing provisions which purportedly address and waive
-19their “‘right to exclusive sexual intercourse’ with the other,”
this Court, reasoning that such “provision[s] relate only to the
parties, has held that “the existence of [such a] separation
agreement between [a] plaintiff and [her spouse] does not shield
[a] defendant from liability for criminal conversation based on [a
Nunn v. Allen, 154 N.C. App. 523, 536, 574
S.E.2d 35, 43-44 (2002), disc. review denied, 356 N.C. 675, 577
S.E.2d 630 (2003).
Finally, a plaintiff may recover for criminal
conversation where the evidence merely shows a single encounter of
sexual intercourse between a defendant and her spouse.
Warner v. Torrence, 2 N.C. App. 384, 163 S.E.2d 90 (1968).
Here, there is no material question of fact that defendant
engaged in sexual intercourse with Mr. Jones in North Carolina
execution of a separation agreement.
While defendant argues that
North Carolina does not have subject matter jurisdiction because at
the time the June 2004 intercourse occurred, neither the parties
nor Mr. Jones were residents of North Carolina and because North
Carolina “has no interest in the exclusive right of the sexual
relationship” between South Carolina residents, we note that “[i]n
actions arising in tort, [North Carolina employs] the doctrine of
lex loci delicti [which] provides that the law of the state where
the tort was allegedly committed controls the substantive issues of
Gbye v. Gbye, 130 N.C. App. 585, 585, 503 S.E.2d 434,
-20434 (citation omitted), disc. review denied, 349 N.C. 357, 517
S.E.2d 893 (1998).
“North Carolina case law reveals a steadfast
adherence by our courts to the traditional application of the lex
loci delicti doctrine.”
Id. at 587, 503 S.E.2d at 435 (citations
Furthermore, as noted by this Court, our Supreme Court
has stated that “lex loci delicti is a rule not to be abandoned in
Id. at 588, 503 S.E.2d at 436 (citing Boudreau v.
Accordingly, we hold that the trial court erred in granting summary
defendant’s favor and that the trial court should have entered
summary judgment in plaintiff’s favor as there is no issue of
material fact regarding plaintiff’s criminal conversation claim
arising out of the June 2004 sexual intercourse and plaintiff was
entitled to judgment as a matter of law.
We note that while the vast majority of states have abolished
the torts of alienation of affections and criminal conversation,
our Supreme Court has clearly stated that both torts exist in North
Carolina and that only our legislature or our Supreme Court can
Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888
Furthermore, until the legislature or Supreme Court acts
to modify these torts, we are bound both by the decisions of that
Court as well as by prior decisions of this Court.
N.C. App. at 202, 557 S.E.2d at 191 (citations omitted).
-21In sum, we conclude that the trial court erred in granting
summary judgment in defendant’s favor and dismissing plaintiff’s
claim for alienation of affections based on lack of subject matter
jurisdiction because when the evidence is viewed in the light most
favorable to plaintiff, a material question of fact exists as to
the state in which defendant’s alleged alienation of Mr. Jones’s
We further conclude that the trial court
dismissing plaintiff’s criminal conversation claim because it is
undisputed that defendant engaged in sexual intercourse with Mr.
Jones in North Carolina in June 2004, while he was still married to
plaintiff; as such, plaintiff, not defendant, was entitled to
summary judgment on the criminal conversation claim.
proceedings not inconsistent with this opinion.
Reversed and remanded.
Judges ELMORE and GEER concur.